How is Employment Creation Defined?

For purposes of the Employment Creation Investor visa, an “employee” is defined by USCIS as an individual who provides services or labor for the commercial enterprise, and who receives wages or remuneration directly from the enterprise. A “qualifying employee” is a U.S. citizen, a lawfully admitted permanent resident, or other immigrant lawfully authorized to be employed in the United States. The definition may include conditional residents, temporary residents, asylees, refugees, or foreign nationals remaining in the U.S. under suspension of deportation. However, it does not include a foreign national entrepreneur, his or her spouse, sons or daughters, or any nonimmigrant foreign national. The qualifying employee must be employed in a position that requires a minimum of thirty-five (35) hours per week. A job-sharing arrangement is acceptable wherein two or more qualifying employees share a full·time position of at least 35 hours per week. Independent contractors, part-time employment, and combinations of part-time positions even if, when combined, meet the hourly requirement per week shan not be included as full-time employment.

An exception to the requirement of the creation of ten full-time positions is made in the case where a foreign national makes the required investment in a troubled business. A “troubled business” is one that has been in existence for at least two years, and has incurred a net loss for accounting purposes during the twelve or twenty-four month period prior to date the foreign national files his or her petition. The financial loss to the business must be at least equal to 20% of the business’ net worth prior to the loss. If a foreign national invests the required amount of capital in a troubled business, the number of existing employees, whether greater or less than ten full·time employees, must be maintained at no less than the pre-investment level for a period of at least two years.

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